Colorado Judge Denies Hip Implant Manufacturer of Using “Unavoidably Unsafe” Defense

On September 30th, a federal judge determined that the victims of an allegedly defective PROFEMUR Total Hip System presented sufficient evidence to claim that the company who produced this product, Wright Medical Technology, could have used a safer design. The judge, however, dismissed the victims’ claims that there was a manufacturing defect that caused their injuries.

The victim and his wife allege that one of the two PROFEMUR hip systems implanted on April 18, 2005, failed in October 2008, which prompted immediate medical attention, which included surgical removal as well as replacement.

Of the victims’ causes of action for fraud, strict liability for defective design, defective manufacture, and pre- and post-operative failure to warn, negligence per se, negligent failure to warn, breach of express and implied warranties, failure to warn, and loss of consortium, the judge dismissed the claims for negligence per se, negligent misrepresentation, strict product liability due to nonconformance with representations and alleged violations of the Colorado Consumer Protection Act, as well as the strict liability claim based on negligent manufacture.

The judge felt that the victims’ assertion that the implant must have been defectively manufactured because it failed is not sufficient to support a jury finding for that issue.

He added that in asserting a defective design claim, the victims must demonstrate to the jurors that a safer product existed, and that the manufacturers had the ability to eliminate unsafe risks based on a cost-benefit analysis. He believes that the victims were able to provide the jury with enough evidence to show that the risks of using the PROFEMUR Total Hip System’s titanium necks outweigh the benefits of using these artificial hip necks.

Colorado courts recognize the defense of an “unavoidably safe” product, adopted from the Restatement (Second) of Torts, comment k; however, Wright Medical failed to make a showing, as a matter of law, of meeting the requirements.

In order for a product to be considered “unavoidably safe” the manufacturer must show that the “utility must greatly outweigh the risk created by its use, the risk must be a known one, the product’s benefits must not be achievable in another manner, and the risk must be unavoidable under the present state of knowledge.”

The victims were able to show that Wright Medical could have built a stronger neck, less susceptible to fracturing, it if had used cobalt chrome for its necks, as opposed to titanium. Because of this, Wright Medical cannot claim that this hip replacement was “unavoidably safe.”

The judge also ruled that Wright had a duty, after surgery, to warn the victims of design defects after the artificial joints had been implanted.

For more information, contact one of our Gacovino Lake attorneys at 1-800-246-HURT (4878).

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